An appeals court in Kentucky has ruled against a nonbiological mother seeking joint custody and visitation of the child she was raising with her former partner, even though a lower court had found both women to have equal parental rights. The women were unmarried—and the case raises troubling concerns for unmarried same-sex parents.
The lower court judge, Deana McDonald, had found that Teri Whitehouse and Tammie Delaney were in a romantic relationship and “clearly intended to create a parent-like relationship between [Whitehouse] and the child…. [They] have held themselves out as the parents of this child since before conception.” McDonald’s ruling also referenced the groundbreaking 2010 Kentucky Supreme Court case Mullins v. Picklesimer, which found that a nonbiological mother was a parent to the child she and her partner had created and were raising together, and had the right to seek custody. (For further details on that case, see the excellent post by Nancy Polikoff, professor at American University’s Washington College of Law.) Whitehouse had met the burden of proof established by the Mullins decision, McDonald said, to show that she and Delaney had made decisions and taken actions to form a “family unit that intended for both parents to act with full parental rights.” Therefore, Delaney “had waived her superior right to sole custody” that she would otherwise have had, and Whitehouse thus had standing to seek joint custody.
Delaney appealed. In a November 30 decision, Appeals Court decision, Robert G. Johnson, wrote, “It seems clear that both parties agreed to artificial insemination for the purpose of having a child, that both parties shared parenting responsibilities to some extent, and that for a relatively short period of time held themselves out as a family unit.” That wasn’t enough, however. Johnson ruled that Whitehouse nevertheless fell short of showing “clear and convincing proof” that she met the necessary requirements to be considered a parent. The women “made no efforts to formalize the custody status of the child at any point and the child bore only Delaney’s name,” he explained. Although they had a commitment ceremony in May 2015, he said, it was not legal, and they did not choose to legally marry even after the U.S. Supreme Court decision in Obergefell v. Hodges (in June 2015) permitted them to do so. Johnson added:
It is also telling that the family court found that the parties intended to create a “parent-like” relationship between Whitehouse and the child, not that Delaney specifically intended to confer parental rights on Whitehouse. Finally, upon the deterioration of her relationship with Whitehouse, Delaney did not allow Whitehouse to continue to participate in parenting responsibilities with the child.
You read that right. He’s citing Delaney’s refusal to allow Whitehouse to continue parenting after the women separated as proof that she never intended Whitehouse to be a parent in the first place. By that logic, no nonbiological mother would ever stand a chance of gaining custody if the biological mother chose not to let her.
It gets worse. Concurring Judge Glenn Acree wrote (my bold):
Considering the Supreme Court’s emphasis in Obergefell on the importance of the marital relationship, legal significance must be given to a decision not to marry. Electing not to marry when the opportunity is available should be deemed to fully contradict all allegations by anyone seeking rights to another person’s child based on the Mullins partial waiver theory. Otherwise, marriage means far less than Obergefell indicates.
Concurring Judge Gene Smallwood, Jr. agreed, writing, “Mullins was decided as it was because of, and as a way of avoiding the pre-Obergefell prohibitions…. Mullins was a destabilizing decision engineered to accommodate a unique peculiar situation which no longer exists.” He therefore encouraged the state Supreme Court “to revisit this issue in light of the modern development in this area of law, to reaffirm all prior precedence on this issue and return the legal standing of parenthood to the safe mooring of the law as guaranteed by the United States Supreme Court in Troxel v. Granville.”
The Troxel case, decided in 2000, ruled unconstitutional a Washington State law that allowed any person, such as grandparents, to petition for visitation rights, even if the biological parents object. The court found that the law violated the mother’s “due process right to make decisions concerning the care, custody, and control of her daughters.”
As New York Law School Professor Arthur Leonard explains, however, “Many state courts have distinguished Troxel from cases involving same-sex parent presenting facts similar to those in this case of Delaney v. Whitehead.” And as Polikoff has noted, “Troxel involved grandparents who had never functioned as parents of the children at issue.”
Going back to Troxel as a basis for determining the rights of same-sex parents would be very dangerous indeed. The appeals judges are wrong, too, in seeing marriage and Troxel-based evaluation as the only solution in this type of custody case. As I have posted about before, a “Voluntary Agreement of Parentage” (VAP) form is a free, simple document that states have long used to allow unmarried, different-sex couples easily to confirm a father’s legal status. Five states have taken action in the past year to allow same-sex couples to start using them, too. VAP forms can offer clarity in cases like Delaney v. Whitehouse (although they also serve to confirm nonbiological parents’ legal status in intact relationships) and help ensure that children retain a connection with both parents, which is usually in the children’s best interests.
Leonard offers further insight on the impact of Delaney v. Whitehouse, writing:
The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court. The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.
And he asserts:
It seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges … to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights. The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.
Indeed. Marriage equality is certainly a fine thing (my spouse and I have taken advantage of it ourselves), but it is not the same as achieving equality in parental rights, as I’ve written a few times before. This development in Kentucky should remind us all that the fight for our families is not yet over.
